Citation Numbers: 198 Mo. App. 628
Judges: Trimble
Filed Date: 3/4/1918
Status: Precedential
Modified Date: 7/20/2022
This is an action on a certificate of life insurance, dated May 1, 1912, issued to and upon the life of Clyde L. Chip by defendant, a fraternal beneficiary society, with the plaintiff, Ida W. Culp, named therein as beneficiary.
The defense was that insured, in procuring the certificate, had made false and fraudulent representations in regard to his health; also that shortly after the policy was issued, and as soon as the misrepresentations were discovered by the defendant, it, on notice to the insured and after opportunity given him to be heard,' cancelled the policy because of said misrepresentations and notified insured of that fact and returned to him his premium; all of which was done pursuant to defendant’s by-laws which insured had agreed should -constitute a part of the insurance contract along with the application and certificate.
A trial in the • circuit court of Clinton county resulted in a verdict for plaintiff in the full amount of the policy with interest. Defendant’s motion for a new trial was sustained, the order reciting that it was done “on the sole ground that the jury disregarded the law given by the court in instruction number one (1) for the defendant.” Plaintiff appealed.
Instruction No. 1 for defendant, which the court says the jury disregarded, is as follows:
*630 “The court instructs the jury that if they find and believe from the evidence that after the execution and delivery of the policy in controversy, and after the defendant company obtained knowledge of misrepresentation and fraud, if any, by the applicant, the defendant company, in compliance with by-laws of said company, gave to said Clyde L. Culp, thirty days’ written notice to show cause to the Board of Control of defendant company why said policy should not be cancelled, and that such notice was given said Clyde L. Culp by registered United States Mail at his then known post-office address, and that said Culp had an opportunity to be heard before said Board of Control and failed to appear, or ask to be heard, or defend against cancellation of the said policy, and that said Board of Control, after a hearing directed the cancellation of the policy in this snit, and notified said Culp of said cancellation, then the policy became thereby null and void, regardless of any waiver by defendant company as to false representations, if any, and your verdict must be for the defendant.”
Appellant asserts that, in a former trial of the case in the circuit court of Clay county, that court set aside a verdict for plaintiff on several grounds, one of which was that the verdict was against the weight of the evidence. Her contention, therefore, now is that the action of the Clinton court, in granting a new trial on the ground that “the jury disregarded the law” given in the instruction quoted above, assigned no reason known to the law unless the said reason be construed as merely another way of saying that the verdict was against the weight of the evidence in support of the defense of cancellation; that the reason given by the court, when considered in connection with the instruction and the evidence on the issues before the jury, was tantamount to saying that the verdict was against the weight of the evidence, and, as section 2023, Revised Statutes 1909, forbids the granting of more than one new trial on that ground, the court could not do indirectly that which the statute forbade him doing directly.
Plaintiff’s abstract of the record proper begins with the petition as if the case originated in the circuit court of Clinton county. Then follows the answer, the reply, the record of the trial,, the verdict and judgment in the Clinton circuit court, the motion for new trial filed by defendant, the sustaining of that motion for the reason given, the filing by plaintiff of an application and affidavit for appeal, the allowance thereof, the granting of time to file bill of exceptions, the filing thereof and the duly filing of the appeal in the Court of Appeals.
This would seem to be the end of appellant’s abstract of the record proper. On the next page is a statement to the effect that “In order that this court may understand more of the past history of this case, we are printing herewith, a short record coming from the Clerk of the Court of Clay county, Missouri.” Then follows a statement of counsel that the case was originally tried in Caldwell county,' from which, on a verdict for defendant, it was appealed to this court, was reversed and remanded, and a change of venue taken to Clay county
Looked at in one way it would appear as if the appellant had not .abstracted the action of the Clay circuit court in her abstract of the record proper but had merely inserted between her abstract of the record proper and her abstract of the bill of exceptions an explanatory statement by counsel to the effect that it appeared from' a certified copy obtained from the Clay circuit clerk, that a former new trial had been granted defendant for certain reasons, one of them being that the verdict was against the weight of the evidence. But .while the abstract is somewhat confused and apparently misleading, yet, as the reasons are set forth in the order of the. Clay circuit court granting the new trial, they became a part of the record proper that was certified on change of venue to Clinton county, and were a part of the record proper in the Clinton court, and hence are preservable,
But, even so, is appellant entitled to have the action of the Clinton “circuit court set aside and reversed? Section 20’23 Revised Statutes 1909, which appellant claims the court violated, says: ‘ ‘ Only one new trial shall be allowed to either party except: First, where the triers of the fact shall have erred in a matter of law; second, when the jury shall be be guilty of misbehavior,” etc. The trial court says it granted a new trial because the jury “disregarded the law” as given in said instruction. If the trial judge, by reason of his opportunities of seeing and knowing what really took place in the trial court, says the jury gave no heed to the law as given by the court, can it be said that it conclusively appears that the jury did not refuse to follow the law but did refuse to accept the facts on which the application of the law rested? This may, perhaps, be the case if there is any substantial evidence controverting the facts upon which the law was predicated or if the evidence of those facts is such that the jury are not bound to believe it. However, we need not decide this question owing to the facts of this particular case. For even conceding, but
It will be observed that the former new trial was granted by the Clay circuit court for three reasons herein above set out. And as the plaintiff abided that order we must regard defendant as being entitled to a new trial because of each one of the first two. In other words, defendant did not have a fair trial in the Clay circuit court because of error in the admission of evidence in plaintiff’s behalf and also because of the exclusion of evidence offered in defendant’s favor. Hence defendant, was then entitled to a new trial on account of errors in matters of law. It is well establish^ ed that section 2023 imposes no limit on the number of new trials granted on account of errors committed during the trial. [State ex rel. v. Horner, 86 Mo. 71; Langston v. Southern Electric R. Co., 147 Mo. 457.] Here, then, we have defendant entitled to and granted a new trial because of errors committed against it. It did not have a fair and legal trial, and is entitled on account of those errors to a new trial regardless of anything else. But it is entitled to one new trial solely on the ground that the verdict is against the weight of the evidence if the trial court is of the opinion that such is the case. And if the reason given by the Clinton circuit court must be taken to mean that the verdict is against the weight of the evidence, then, acccording to appellant’s contention, the judgment granting a new trial must be reversed even though defendant was justly entitled to and was granted the first new trial on other grounds. Stated in another way, appellant’s contention is really this: Although defendant was justly entitled to the first new trial on account of errors committed against it, and although defendant is entitled to one new trial where the verdict is against the weight of the evidence, nevertheless, defendant cannot now obtain the benefit of this right merely because the Clay circuit
The judgment is affirmed.